1. The Website, available at AMOMAMA.DE (the “Website”) and the content available through the Website or our emails (the “Content”) are distributed by pictures Limited (“we”, “us”, “our” or “the Company”). The Website, together with the content, tools, transactions and other services available through the Website, is collectively referred to as the “Service”.
2. Your access and use of the Service constitutes your agreement to be bound by these Terms of Service (the “Terms”), which create a legally binding contractual relationship between you and the Company. For this reason, please read the Terms carefully before using the Service.
3. Please also read our Privacy Policy. The provisions of the Privacy Policy and any other supplemental terms, policies, or documents that may be posted on the Service from time to time are hereby expressly incorporated by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms at any time and for any reason.
4. Except as expressly provided herein, we will notify you of any changes by updating the “last updated” date of these Terms, and you waive the right to receive specific notice of any such change.
5. THESE TERMS CONTAIN DISCLAIMERS (SECTION 5), LIMITATION OF LIABILITY (SECTION 6), AS WELL AS PROVISIONS THAT WAIVE YOUR RIGHT TO A TRIAL, RIGHT TO A COURT HEARING, AND A RIGHT TO PARTICIPATE IN A CLASS ACTION (MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER). UNLESS YOU OPT OUT WITHIN 30 DAYS OF YOUR FIRST USE OF OUR SERVICE IN ACCORDANCE WITH SECTION 9, ARBITRATION IS THE EXCLUSIVE REMEDY FOR ALL DISPUTES AND IS MANDATORY, EXCEPT AS SET FORTH IN SECTION 9.
6. IF YOU DO NOT AGREE WITH ANY PART OF THESE TERMS, OR IF YOU DO NOT HAVE THE RIGHT OR AUTHORITY TO BE BOUND BY THESE TERMS, DO NOT ACCESS OR USE THE SERVICE.
2. Service
1. You acknowledge that all text, images, trademarks, logos, compilations (i.e., the collection, ordering, and compilation of information), data, other content, software, and materials displayed on the Service or used by the Company to operate the Service (including the Site and Content, and the exclusion of User Content (as defined below) are our property or the property of the third party.
2. The Company expressly reserves all rights, including all intellectual property rights, in all of the foregoing. Except as expressly permitted in these Terms, use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other exploitation is expressly prohibited. By providing the Service, you or any third party do not transfer any intellectual property rights, title, or interest.
3. The information you submit to us as part of your use of our Site, and any data, text, and other materials that you transmit to us or send to us (“User Content”), remains your intellectual property, and the Company does not claim ownership of the copyright or other proprietary rights in such registration information and the User Content. Notwithstanding the foregoing, you agree that the Company may retain copies of all registration information and User Content and use such information and User Content as reasonably necessary or related to the operation of the Service as described in these Terms and the Privacy Policy.
4. You grant the Company a non-exclusive, worldwide, transferable, perpetual and irrevocable right to publish, distribute, publicly display and perform the User Content in connection with the Service.
5. Subject to these Terms, the Company grants you a non-transferable, non-exclusive license (without the right to sublicense) to use the Service solely for your personal, non-commercial purposes.
6. You agree, represent and warrant that your use of the Service, or any part thereof, is in accordance with the licenses, agreements, and restrictions set forth above and does not violate the rights of any other party, nor does it violate any contract or legal obligation to any other party. In addition, you agree that you will comply with all applicable laws, regulations, and ordinances relating to the Service or its use and will be solely responsible for your individual violations of such laws.
7. We reserve the right to make changes to the Service (whether free or paid features) at any time, with or without notice. You acknowledge that a variety of actions taken by the Company may affect or prevent you from accessing the Service at certain times and/or in the same manner for limited periods of time or permanently, and agree that the Company assumes no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion or unavailability of any content or services.
8. Access to and use of the Service is at your own risk. The Company assumes no responsibility for any damage to your computer system, loss of data, or any other damage that may occur to you or any third party, including, without limitation, personal injury resulting from your access to or use of the Service, or from reliance on any information or advice.
9. The Company is under no obligation to provide you with customer support of any kind. However, the Company may assist you from time to time at the Company’s sole discretion.
3. Third-party ads, other users
1. The Service may contain links to third-party websites or third-party resources and advertising (collectively, “Third-Party Ads”). Such third-party ads are not under the control of the Company and the Company is not responsible for any third-party ads. The Company provides these Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, guarantee, or make any representations with respect to Third-Party Ads. Ads and other information provided by third-party websites may not be entirely accurate. You acknowledge sole responsibility and assume all risks arising from the use of such websites or resources. If you link to a third-party website, the terms and policies of the applicable service provider will apply, including privacy and data collection practices. You should conduct any investigations you deem necessary or appropriate before proceeding with any transactions with the third-party service providers. Your transactions and other dealings in connection with the third-party advertisements found on or through the Site, including the payment and delivery of related goods or services, are solely between you and that merchant or the Advertiser.
2. Each user of the Service is solely responsible for all of their User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for User Content. We do not guarantee the accuracy, timeliness, suitability or quality of the User Content and assume no responsibility for the User Content. Your interactions with other Service users are solely between you and that user. You agree that the Company is not responsible for any loss or damage incurred as a result of any such interactions. In the event of a dispute between you and a Service user, we are under no obligation to participate.
3. You hereby release us, our officers, employees, agents and successors from any claims, demands for any losses, damages, rights, claims and actions of any kind, including personal injury, death and property damage, either directly or indirectly related to, or derived from, the interactions or conduct of other Service users or third-party advertisements.
4. User Representations and Restrictions
1. By using the Service, you represent and warrant that:
You have the legal capacity and agree to abide by these Terms.
You are not under 16 years of age.
You will not access the Service in an automated or non-human manner, whether through a bot, script, or otherwise.
You will not use the Service for any illegal or unauthorized purpose.
You are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country.
You are not listed on any U.S. Government list of prohibited or restricted parties.
Your use of the Service does not violate any applicable law or regulation.
2. If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to refuse any and all current or future use of the Service (or any part thereof).
3. You may not access or use the Service for any purpose other than that for which we provide the Service. The Service may not be used in connection with any commercial activity, except as expressly endorsed or approved by us.
4. As a user of the Service, you agree not to:
systematically retrieve data or other content from the Service for the purpose of creating or compiling, directly or indirectly, a collection, compilation, database, or directory without written permission from us;
make unauthorized use of the Service;
make any modifications, adaptations, improvements, translations, or derivative works of the Service;
use the Service for revenue-generating purposes, commercial enterprises, or any other purpose for which it is not designed or intended;
make the Service available over a network or other environment to allow access or use by multiple devices or users at the same time;
use the Service to create any product, service, or software that directly or indirectly competes with or replaces the Service in any way.
use proprietary information, or any of our interfaces, or other intellectual property for the design, development, manufacture, licensing, or distribution of applications, accessories, or devices for use with the Service.
Circumvent, disable, or otherwise interfere with any security features of the Service.
interfere with, or impose an undue burden, on the Service or the networks or services connected to the Service.
Decrypt, decompile, disassemble, or reverse engineer any software that includes or in any way forms a part of the Service.
decipher, decompile, disassemble, or reverse engineer the software that includes or in any way forms a part of the Service;
circumvent any measures of the Service that are intended to prevent or restrict access to the Service or any part of the Service.
Upload or distribute files that contain viruses, worms, Trojan horses, corrupted files, or any similar software or programs that may damage the operation of a user’s computer.
Use, launch, develop, or distribute the automated systems, including the spiders, robots, cheat utilities, scrapers, or offline readers that access the Service, or use or launch unauthorized scripts or other software.
Use the Service to send automated requests to a website or unsolicited commercial email.
Disparage, tarnish, or otherwise damage the Service in our opinion.
Use the Service in any manner inconsistent with any applicable law or regulation; or
otherwise violate these Terms.
5. Disclaimer of Warranties
THE SITE, CONTENT, AND OTHER ASPECTS OF THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE SITE, THE CONTENT, AND OTHER ASPECTS OF THE SERVICE ARE PROVIDED WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES, NON-INFRINGEMENT, UNDERSTANDING, AND ANY WARRANTIES IMPLIED BY A COURSE OF PERFORMANCE OR USAGE THAT ARE EXPRESSLY ENTERED INTO. THE COMPANY AND ITS AFFILIATES, LICENSORS AND SUPPLIERS DO NOT WARRANT THAT: (I) THE SERVICES, CONTENT OR OTHER INFORMATION ARE TIMELY, ACCURATE, RELIABLE OR CORRECT; (II) THE SERVICE IS SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION. (III) ANY DEFECTS OR ERRORS ARE CORRECTED; (IV) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THAT ANY RESULT OR RESULT MAY BE ACHIEVED.
6. Limitation of Liability
1. BY NO EVENT SHALL WE (AND OUR MEMBERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF THESE TERMS OR YOUR USE OF THE SERVICE (INCLUDING THE SITE OR CONTENT) OR THIRD-PARTY ADS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO AND USE OF THE SERVICE (INCLUDING THE SITE, CONTENT, AND USER CONTENT) AND THIRD-PARTY ADS IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR JURISDICTION OR LOSS OF DATA.
2. NOTWITHSTANDING THE CONTRADICTION CONTAINED HEREIN, YOU AGREE THAT THE COMPANY’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF THE USE OF THE SITE, CONTENT, OR SERVICE SHALL BE LIMITED TO $100. THE ABOVE LIMITATIONS OF DAMAGES ARE THE BASIS OF THE BASIS OF THE TERMS BETWEEN THE COMPANY AND YOU.
3. SOME COURT RULES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL CONSEQUENTIAL DAMAGES. THE ABOVE LIMITATIONS OR EXCLUSIONS MAY THEREFORE NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER RIGHTS THAT DIFFER FROM THE JURISDICTION.
7. Indemnification
You agree to indemnify, defend and hold harmless the Company, its successors, subsidiaries, affiliates, suppliers, licensors, and partners, and their officers, directors, employees, agents, and representatives from each of them, including costs and attorneys’ fees, from and arising out of any claims or demands made by any third party due to (i) your use of the Service, (ii) the User Content, or (ii) your violation of these Terms. The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of such claims. You agree not to settle any matter without the prior written consent of the Company. The Company will use reasonable efforts to notify you of any such claim, action or proceeding as soon as you become aware of it.
8. International use
The Company does not warrant that the Service is accessible, appropriate, or legally available for use in your country. Access to and use of the Service is prohibited in territories where it would be illegal to do so. You access the Service on your own initiative and are responsible for compliance with local laws.
9. Informal dispute resolution procedures
PLEASE READ THIS PROVISION CAREFULLY TO ENSURE YOU UNDERSTAND IT – THIS SECTION GOVERNS HOW DISPUTES BETWEEN YOU AND THE COMPANY WILL BE RESOLVED.
BY AGREEING TO THIS PROVISION, YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT AND YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL.
YOU ALSO AGREE TO RESOLVE ANY DISPUTE BETWEEN YOU AND THE COMPANY THROUGH BINDING ARBITRATION, UNLESS YOU EXERCISE YOUR RIGHT TO OPT-OUT OF ARBITRATION AS DESCRIBED BELOW.
You and Amopictures Limited (“we” or the “Company”) agree to resolve all disputes by binding arbitration as described below, except for: all disputes (including any related disputes involving the Company, its subsidiaries or affiliates), except: (i) claims that fall within the jurisdiction of small claims court, to the extent that such claims are are not class actions and meet the limits of jurisdiction and value of the court; and (ii) disputes related to intellectual property rights. A “Dispute” means any claim, controversy, or legal controversy—whether arising out of past, present, or future events, and whether based on contract, tort, statute, or common law—between You and the Company with respect to the Site, Services, or this Agreement (the “Arbitration Agreement”). “Dispute” also includes disputes over the interpretation, applicability, or enforceability of these Terms or the formation of this arbitration agreement, including whether any part thereof is invalid or unenforceable.
Mandatory pre-notification procedure
You and we agree that efforts to resolve disputes amicably, informally often lead to faster and more cost-effective outcomes. Therefore, if you intend to make a Claim in relation to a Dispute (as defined above) against the Company, you must first send the Company a written Notice of the Dispute (“Notice”) which will provide the Company with some basic information about you and the Dispute. Each notice must include: (i) your name, address, and email address, (ii) a detailed description of your dispute; (iii) any relevant facts regarding your use of the Site and Service (including your account ID, profile screenshots, and anything that helps us identify your account); (iv) a detailed description of the relief you are seeking, including a calculation of any damages claimed; and (v) a statement signed by you personally (and not by your attorney) confirming the accuracy of the information in the notice. The notice must be individual, meaning it must relate only to your dispute and not to someone else’s dispute. If you are filling out a Notice for another person, you must provide all of the information described above, as well as include a statement that describes your relationship with the person and explains why the person cannot complete the Notice themselves.
You must send the notice to the Company at the following address:
If we need to send you a notice, we will send it to the contact information we have, which may include the contact details associated with your account.
After we receive notice, you and we agree to work in good faith to resolve the dispute for 60 days. The 60-day period may be extended if you and we agree that such an extension is likely to result in an agreement. As part of this informal negotiation process, you and we agree that we will both participate in at least one individual video conference (“Video Conference”). The video conference can take place via Zoom, Microsoft Teams, WhatsApp or any other similar platform that you and we agree on and that we both have access to. The video conference can also take place after the 60 days have elapsed if necessary. If you are represented by an attorney in your dispute, they may participate in the videoconference, but you are still required to participate in good faith yourself. The company is also obliged to participate in the videoconference by sending one or more of its representatives; it may also send one or more of its lawyers. If you are unable to participate via video, you may participate by telephone, provided that you confirm in writing that there are circumstances that prevent you from participating in the video (e.g., no phone with a working camera or lack of a stable internet connection). You and we agree that we (and our attorneys, if applicable) will work cooperatively to schedule the video conference at the earliest possible mutually convenient time after receipt of notice. You and we also agree to use our best efforts to resolve the dispute via videoconference. If the issues set out in the notice cannot be resolved within 60 days of receipt of the full notice (or such longer agreed period), you or we may commence arbitration or small claims court.
Compliance with these mandatory informal dispute resolution procedures and advance notification procedures (including the videoconferencing requirement) is a prerequisite for initiating arbitration or proceedings before small claims court. Failure to comply with these procedures is a breach of this arbitration agreement.
The mandatory advance notification procedures are essential so that you and the company have a real opportunity to resolve disputes in a cost-effective and efficient manner. Except where prohibited by applicable law, the arbitration provider shall not accept or administer any arbitration claim unless the party making the claim confirms in writing that the mandatory advance notification procedures (including the videoconferencing requirement) have been fully complied with. If the party submitting the arbitration claim does not attach written confirmation that the advance notification procedures (including videoconference) have been complied with, the arbitration claim will be administratively closed by the arbitration board and the responding party will not incur any fees. A court of competent jurisdiction shall have the power to enforce this provision and accordingly prohibit arbitration or proceedings in small claims court.
All offers, undertakings, acts and statements made under the mandatory advance notification process by a party, its representatives, employees or attorneys shall be confidential and may not be used in any subsequent proceeding for any purpose (other than to certify in writing that the mandatory prior notification process has been completed prior to the filing of an arbitration claim). Evidence that is otherwise admissible or findable is not rendered inadmissible or unfindable by this section.
Small Claims Court
Subject to applicable jurisdiction requirements and the mandatory advance notice requirements explained above, you or the Company may elect to pursue a dispute in local small claims court rather than arbitration, so long as the matter remains in small claims court and is conducted only on an individual basis. If one party has already filed a Request for Arbitration, the other party may, in its sole discretion, notify the Arbitration Forum that it wishes the dispute to be heard in Small Claims Court. In this case, the arbitration forum will administratively close the arbitration and the dispute will be heard in the competent small claims court without the respondent having to pay any fees.
What is arbitration?
Arbitration is a more informal way to resolve our disagreements than a lawsuit in court. For example, in arbitration, a neutral arbitrator is used instead of a judge or jury, there is more limited evidence, and courts have a very limited ability to review the proceedings. Although the process is more informal, the arbitrator may make some of the same individual damages and appeal decisions that a court may grant. However, an arbitrator cannot issue an order requiring a party to do or refrain from doing anything – this is known as “equitable relief.” Both you and we may go to court and seek equitable relief, including a motion to compel the other party to comply with this arbitration agreement. However, you and we agree that we will seek equitable relief only in the state and federal courts located in Delaware. This equitable relief exception does not constitute a waiver of this arbitration agreement. You and we agree that the U.S. Federal Arbitration Act and federal arbitration law govern the interpretation and enforcement of this provision. A court of competent jurisdiction shall have exclusive jurisdiction to decide any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. This arbitration provision will survive the termination of these Terms and the termination of your account.
CLASS ACTION AND JURY LITIGATION WAIVER
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND THE COMPANY WAIVE THE RIGHT TO A JURY TRIAL AND THE RIGHT TO LITIGATE DISPUTES IN FAVOR OF ARBITRATION (EXCLUDING PROCEEDINGS IN SMALL CLAIMS COURT DESCRIBED ABOVE). YOU AND THE COMPANY ARE EACH WAIVING ANY RIGHT TO FILE OR PARTICIPATE IN A CLASS ACTION LAWSUIT AGAINST THE OTHER PARTY, INCLUDING ANY CURRENTLY PENDING LAWSUITS AGAINST THE COMPANY. TO THE FULLEST EXTENT PERMITTED BY LAW, THERE IS NO RIGHT OR AUTHORITY TO BRING CLAIMS IN COURT ON A COLLECTIVE, COLLECTIVE, REPRESENTATIVE OR CONSOLIDATED BASIS.
EXCEPT FOR THE MASS ACTION PROCEDURES DESCRIBED BELOW, YOU AND WE AGREE THAT:
THE ARBITRATOR MAY GRANT FINAL RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING SUCH RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE FINAL RELIEF JUSTIFIED BY THAT INDIVIDUAL PARTY’S CLAIM.
THE ARBITRATOR SHALL NOT PROVIDE FINAL RELIEF FOR, AGAINST, OR ON BEHALF OF ANY PERSON WHO IS NOT A PARTY TO THE ARBITRATION, ON ANY COLLECTIVE, COLLECTIVE, OR REPRESENTATIVE BASIS.
IF A COURT FINDS THAT ANY OF THE PROHIBITED PROVISIONS IN THIS PARAGRAPH ARE UNENFORCEABLE WITH RESPECT TO A PARTICULAR CLAIM OR RELIEF REQUEST, AND SHOULD SUCH DECISION BE UPHELD AND FINAL AFTER ALL REMEDIES HAVE BEEN EXHAUSTED, YOU AND THE COMPANY AGREE THAT SUCH PARTICULAR CLAIM OR RELIEF WILL BE HEARD IN COURT BUT WILL BE SUSPENDED UNTIL ARBITRATION IS RESOLVED ON THE REMAINING CLAIMS YOU HAVE ASSERTED. CLAIMS. IF THIS SPECIFIC PARAGRAPH IS HELD TO BE UNENFORCEABLE, THIS ARBITRATION AGREEMENT WILL BE VOID IN ITS ENTIRETY (EXCEPT FOR THE JURY TRIAL WAIVER AND INFORMAL DISPUTE RESOLUTION PROCEDURE).
Arbitration proceedings
The arbitration shall be governed by the applicable rules of National Arbitration & Mediation (“NAM”) (including the Comprehensive Dispute Resolution Rules and Procedures and the Supplemental Rules for Mass Arbitration Filings, as applicable) (“NAM Rules”), as amended by this Arbitration Agreement, and administered by NAM. To the extent that the NAM Rules governing the taking of evidence in arbitration are inconsistent with the substantive law of the state in which your claim arose, the arbitrator will apply the substantive law of the state in which your claim arose. The NAM Rules are available online at https://www.namadr.com or can be requested in writing at the above notification address. A form for initiating arbitration proceedings at NAM can be found at: https://www.namadr.com/content/uploads/2024/03/Comprehensive-Demand-for-Arb-revised-3.21.2024.pdf or by contacting NAM.
In the event that NAM is unavailable or unwilling to do so, another arbitration firm will be selected by the parties to undertake this or, if the parties cannot agree on an alternative administrator, determined by the court pursuant to 9 U.S.C. §5.
You and we agree that the party initiating arbitration must provide a written statement that it has complied with and completed the requirements of the mandatory advance notice and informal dispute resolution procedures to accompany any arbitration claim. The Demand for Arbitration and the Declaration must be personally signed by the party initiating the arbitration (and its attorney, if represented).
The arbitration will be conducted in English. A single independent and impartial arbitrator shall be appointed remotely in accordance with the NAM Rules, as amended herein. You and the Company agree to abide by the following rules, which are designed to simplify the dispute resolution process and reduce costs and burdens for the parties: (i) the arbitration will be conducted online and/or solely on the basis of written submissions, the exact form chosen by the party initiating the arbitration; (ii) the arbitration does not require the parties or witnesses to appear in person unless the parties agree to do so in writing or the arbitrator decides that a formal hearing is required; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
If an in-person hearing is required and you reside in the United States, the hearing will take place in Delaware unless the arbitrator determines that doing so would constitute unreasonable hardship for you. In this case, the personal interview may take place in the state and county of the plaintiff’s residence. If you reside outside the United States, the location of an in-person interview will be determined in accordance with the NAM Rules.
The award shall be rendered in writing and shall contain a statement of reasons for the decision on each claim. The arbitrator will apply the laws of the State of Florida in conducting the arbitration, unless the substantive law of the state in which your claim arose prohibits it. In such cases, the arbitrator will apply the substantive law of the state in which your claim arose. You acknowledge that these Terms and your use of the Service constitute a transaction involving interstate commerce. The United States Federal Arbitration Act governs interpretation, enforcement, and procedure.
The arbitrator shall be bound by and abide by this Agreement to Arbitrate. In the event that the NAM Rules conflict with this Arbitration Agreement, the terms of this Arbitration Agreement shall prevail. In the event that the arbitrator determines that the strict application of any provision of this arbitration agreement would result in an inherently unfair arbitration, the arbitrator shall have the authority to amend such provision to the extent necessary to ensure a fundamentally fair arbitration that is consistent with an efficient and cost-effective resolution of disputes.
Unless you and the Company agree otherwise, the arbitration will be conducted virtually via video or telephone conference.
Arbitrator’s decision
Except in exceptional circumstances, the arbitrator will make his decision within 120 days from the date of appointment. The arbitrator may extend this period by a further 30 days in the interest of justice. All arbitration proceedings shall be non-public and confidential, and all related documents shall be permanently sealed, except to the extent necessary to obtain judicial confirmation of the award. The award shall be rendered in writing and shall contain a statement of reasons for the decision on each claim.
The award will be binding only between you and the Company and will not have any prejudicial effect in any other arbitration or proceeding involving another party.
Fees
Payment of arbitration fees (the fees charged by the arbitrator, including filing, arbitrator, and hearing fees) will be governed by the applicable NAM Rules, unless you are entitled to a fee waiver under applicable law. If, after exhausting all fee exemptions that may be available, the arbitrator determines that the arbitration fees would be unreasonably high for you compared to a court proceeding, we will pay as much of your filing, arbitrator, and hearing fees as the arbitrator deems necessary to prevent the arbitration from becoming prohibitive, regardless of the outcome of the proceeding, unless the arbitrator determines: that your claim(s) have been asserted willfully, for an improper purpose or in bad faith.
You and we agree that the arbitration should be cost-effective for all parties and that either party may contact NAM to discuss the reduction or deferral of fees.
Confidentiality
At your request or ours, the arbitrator shall issue an order that any confidential information of a party disclosed during the arbitration (whether in documents or orally) shall not be used or disclosed, except in connection with the arbitration or any proceeding to enforce the award, and that any admissible judicial filing of confidential information shall be sealed.
Settlement offers and offers on judgment
At least ten (10) calendar days prior to the date set for the arbitration hearing, you or the other party’s company may make a written offer of judgment to enable judgment to be reached on certain terms. If the offer is accepted, it must be submitted to the arbitrator, together with proof of acceptance, who will then issue a judgment accordingly. If the offer is not accepted prior to the arbitration hearing or within thirty (30) calendar days of submission, whichever occurs first, it will be deemed withdrawn and may not be presented as evidence in the arbitration. If a party does not accept an offer and subsequently fails to achieve an award more favourable to it, it will not be able to recover its costs incurred under the offer and will be liable to pay the costs of the offering party from the date of the offer (including reasonable attorneys’ fees, to the extent permitted by law, in an amount not exceeding the damages awarded).
The parties agree that all disputes relating to settlement offers or offers for judgment in a mass proceeding (“mass filing”) shall be decided by a single arbitrator to the extent that such offers contain the same material terms. In arbitration proceedings with represented parties, the attorneys of the represented parties agree to pass on individual settlement offers or offers of judgment to each individual affected party.
Additional Procedures for Mass Arbitration Submissions
The following provisions set forth additional procedures for bulk arbitration filings. If twenty-five (25) or more similar claims against the Company are brought or otherwise coordinated by the same or coordinated attorneys as defined and criteria for “mass filings” in the NAM Rules, you and we understand and accept that these additional procedures apply and that the resolution of your dispute may be delayed. You and we agree that our attorneys may sit down together during this process to discuss adjustments to these procedures based on the particular requirements of mass arbitration filing. You and we agree to use all reasonable efforts to maximize the integrity and efficiency of the arbitration process to resolve disputes between us, especially in the case of mass arbitration filings, and also to adhere in good faith to the procedures set forth in this section. The parties further agree that the application of these mass arbitrations has been designed to ensure an efficient and fair settlement of the claims.
Bellwether Arbitrations for mass arbitration filings.Lead proceedings are encouraged by courts and arbitral administrators when there are multiple disputes with similar claims against the same or joined parties. The parties select ten individual arbitration cases (five per side), known as “Initial Test Cases”, to proceed to arbitration. Only the first test cases are submitted to the referee. All other claims are suspended. This means that the submission fees are only paid for the first test cases; for all other Requests for Arbitration in a Mass Arbitration Filing, the filing fees (as well as any consideration of such requests by the arbitrator) will be suspended, and neither you nor the Company will be obligated to pay such fees. You and the Company also agree that no contract, statutory, or other claims, damages, or penalties of any kind will arise for any failure to pay such fees. If, contrary to this rule, non-lead proceedings are filed with the arbitrator, the parties shall hold these applications pending the completion of the first test cases. Unless the claims are settled earlier or the schedule is extended, the arbitrators will render a final award for the First Test Cases within 120 days of the First Pretrial Conference.
Global Mediation in Mass Arbitration Submissions.Upon completion of the First Test Cases, the Parties will commit to global mediation of all remaining individual arbitration cases of the Mass Arbitration Submission (“Global Mediation”), with the submission fees for the non-Test Cases deferred until the completion of the First Test Cases and subsequent Global Mediation. After the final awards in the First Test Cases have been submitted to the mediator, the mediator and the parties have 90 days to agree on a factual methodology and submit an offer to resolve the outstanding cases. If the parties are unable to resolve the outstanding claims during the Global Mediation, they may decide to opt out of the arbitration and pursue the remaining claims in court. Notification of withdrawal must be submitted in writing within 60 days of the conclusion of the Global Mediation. If no notification is made, the arbitration proceedings can then be filed and conducted by the arbitral administrator. You and we also acknowledge that all applicable statutes of limitations are suspended until the conclusion of the global mediation process.
Salvatorische Klausel. Sollte ein Teil dieser Bestimmungen für Massen-Schiedseinreichungen für ungültig, nichtig oder nicht durchsetzbar erklärt werden, ist diese Bestimmung von der Schiedsvereinbarung abtrennbar und berührt nicht die Gültigkeit und Durchsetzbarkeit der übrigen Bestimmungen.
Opt-out aus dieser Schiedsvereinbarung.
Bestehende Nutzer. Nutzer, die zuvor einer Schiedsvereinbarung zugestimmt haben, können diese aktualisierte Schiedsvereinbarung ablehnen, indem sie der unten beschriebenen Opt-out-Methode folgen. Solche Nutzer bleiben jedoch weiterhin an die zuletzt gültige vorherige Version der Schiedsvereinbarung gebunden und sind im Übrigen an diese Bedingungen gebunden. Frühere oder bestehende Nutzer, die nicht von dieser aktualisierten Schiedsvereinbarung zurücktreten, sind an diese Schiedsvereinbarung gebunden, und sie gilt für alle Streitigkeiten zwischen solchen Nutzern und dem Unternehmen, einschließlich solcher, die vor dem Inkrafttreten dieser Bedingungen entstanden sind (aber nicht tatsächlich einem Schiedsverfahren zugeführt wurden). Schiedsanträge, die vor dem Inkrafttreten dieser Schiedsvereinbarung bereits ordnungsgemäß bei einem Schiedsanbieter eingereicht wurden und im Einklang mit einer vorherigen Version dieser Schiedsvereinbarung stehen, unterliegen den Bedingungen der vorherigen Version.
Neue Nutzer. Nutzer, die ab dem erstmals ein Konto beim Unternehmen erstellen, können sich von dieser Schiedsvereinbarung abmelden.
Method and effects of the opt-out. Subject to the above, you may opt out of this arbitration agreement by sending written notice of your decision to the following address within 31 days of the effective date of the arbitration agreement, as set forth in the “Last Updated” date of the Terms: [email protected]. Your notification must include the following:
Your name
Your username (if any)
The email address and/or phone number you used to set up your account (if you have one)
A clear statement that you wish to opt out of this arbitration agreement
If you opt out of this arbitration agreement, all other parts of the Terms and any other agreements between you and the Company will continue to apply to you. The opt-out of this arbitration agreement will not affect any other arbitration agreements you currently have with us or may enter into with us in the future.
Continuation of the Arbitration Agreement. This arbitration agreement will remain in effect even after your relationship with the Company terminates, including any notice of revocation or other action by you to terminate your participation in the Service or any communication with the Company.
Severability. If any part of this arbitration agreement is found to be void, invalid or otherwise unenforceable, that part will be deemed severable and, if possible, replaced by a valid and enforceable provision or part that comes as close as possible to the original intent of such provision or part thereof. The remaining part of this arbitration agreement will continue to be valid and enforceable in accordance with the terms and conditions contained herein.
10. Applicable law
The laws of the State of Florida, excluding its conflict of law provisions, govern this Agreement and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. To the maximum extent any action relating to any dispute arising hereunder is admissible in a court of law, such action shall be subject to the exclusive jurisdiction of the state and federal courts located in Delaware, and you hereby irrevocably submit to the personal jurisdiction of such courts and waive any objection for inaccurate or impractical venue.
11. Residents of the EEA or the United Kingdom
Nothing in these Terms deprives you of the consumer protection rights granted by the mandatory laws of your country of residence.
If you have a complaint, please contact us at [email protected]. If we do not resolve your complaint to your satisfaction, you may (but are not obliged) to have recourse to out-of-court dispute resolution procedures for consumer disputes. A list of dispute resolution bodies is available at https://consumer-redress.ec.europa.eu/dispute-resolution-bodies_en. The Company does not participate in any alternative dispute resolution procedure except as required by law.
If a dispute arises under these Terms, you may bring proceedings in the competent courts of your habitual residence in the EEA or the United Kingdom, and those courts will have exclusive jurisdiction over the dispute. The Company will also submit any disputes to the courts in your country of habitual residence.
These Terms, the Service and any dispute between you and the Company shall be governed by the laws of England and Wales, except for its conflict of law rules and the 1980 UN Convention on Contracts for the International Sale of Goods, which does not apply.
12. California Residents
If you are a California resident, Cal. Civ. Code § 1789.3 provides that you may submit complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing .
13. Limitation of the Claim Period
You agree that notwithstanding any applicable law or dispute resolution procedure to the contrary, any claim or cause of action arising out of or relating to the use of the Service or these Terms must be filed within one (1) year from the date the claim or cause of action first arose. Otherwise, your claim will expire permanently.
The provisions of this section, entitled “Limitation of the Claim Period”, constitute a separate, legally binding agreement between you and the Company.
14. Miscellaneous provisions
1. No delay or omission by us in exercising any of our rights arising from your failure to comply with or default in relation to these Terms shall affect such right or be construed as a waiver thereof and a waiver by the Company. Any agreement, condition or arrangement required by you to perform shall not be deemed a waiver of any subsequent breach of that or any other agreement, condition or agreement contained herein.
2. Subject to SECTION 9, these provisions shall remain in full force and effect if any provision of these Terms is found to be invalid or unenforceable, and shall be reformed so that they are valid and enforceable, taking into account the intent of the parties to the fullest extent permitted by law.
3. Except as expressly provided herein, these Terms constitute the entire agreement between you and the Company with respect to the subject matter hereof and supersede all prior representations, agreements or representations, whether written or oral, with respect to such subject matter.
4. The Company may transfer or assign all of its rights and obligations under these Terms to another person by any means, including through Novation. By accepting these Terms, you consent to such assignment and transfer to the Company. You acknowledge that the inclusion in the Service of a version of these Terms that specifies another person as a party to the Terms constitutes valid notice to you of the transfer of the Company’s rights and obligations under the Agreement (unless expressly stated otherwise).
5. All information transmitted in the Service is considered electronic communication. When you communicate with us through or through the Service or through other electronic means such as email, you are communicating with us electronically. You agree that we may communicate with you electronically and that such notices, as well as disclosures, agreements and other communications that we provide to you electronically, are equivalent to written communications and have the same force and effect as if they were in writing and signed by the party sending the notice.
6. In no event shall the Company be liable for any failure to comply with these Terms to the extent that it is due to factors beyond the Company’s reasonable control.
15. Contact
If you would like to send a notice under these Terms, or if you have any questions about the Service, you may contact us at [email protected].
I HAVE READ THESE TERMS AND AGREE TO ALL OF THE ABOVE TERMS.
